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Section 18C of the Act makes speech unlawful if it offends, insults, humiliates or intimidates on the basis of race.

According to Tony Abbott, the debate had become a ‘complication’ in working in ‘ever closer consultation with communities including the Australian Muslim community’.

Clearly the government decided to abandon its changes based on pressure from ethnic community groups.

Discussion about the need for reform did not start well. The argument that people have ‘a right to be a bigot’ was neither the justification for reforming this law, nor is it accurate.

To be clear, there is a human right to freedom of thought and expression.

We use our freedoms to exercise these human rights. Freedom of thought is an unlimited right that ranges from the most wonderful to the most disturbing thoughts.

Freedom of expression, or speech, as it is commonly referred to, has a similar range but is restricted when speech conflicts with the rights of others, or causes explicit harm.

The justification for reforming the Racial Discrimination Act is because it encroaches too heavily on free speech.

One of the great myths was that there was not broad-based support for change.

Civil liberties groups, academics, lawyers, think tanks and people within ethnic communities acknowledge that the law should be amended. However, there was a diversity of views about how it should have been changed.

The diversity of support to change the law should not surprise. The provisions in the Racial Discrimination Act were preceded by three independent inquiries looking at how to tackle racism in Australia. None recommended the current law.

The first was the Royal Commission into Aboriginal Deaths in Custody. It recommended that there should be a federal civil offence against racial vilification, defined as speech that amounted to ‘racial violence, discrimination or hostility’.

The second was the Human Rights and Equal Opportunity Commission’s National Inquiry into Racist Violence.

Its report recommended the creation of a federal civil offence against ‘incitement of racial hostility’, ‘an express prohibition of racial harassment’ as well as a federal criminal offence against ‘racial violence’.4 Third, there was the Australian Law Reform Commission’s 1992 inquiry into Multiculturalism and the Law, which examined the issue of racial speech. This inquiry recommended a civil offence ‘making incitement to racist hatred and hostility unlawful’.5 All three of these recommendations are significantly different from the current law we have.

The Parliamentary Library’s Bill digest of the amendments to the Act put it best: ‘It is often argued that these three reports are the basis for the Commonwealth’s proposed legislation; however, the Racial Hatred Bill 1994 (Cth) is in some respects completely contrary to the recommendations of these reports’.6 ii Tim Wilson was appointed Australia’s Human Rights Commissioner in February 2014. Dubbed the ‘Freedom Commissioner’, Tim is a proud and passionate defender of universal, individual human rights. As Commissioner he is focused on promoting and advancing traditional human rights and freedoms, including free speech, freedom of association, worship and movement and property rights.

The Parliamentary Library also identified that the recommendations of the three inquiries ‘involve(d) a high threshold of serious conduct’, whereas the current law ‘establishes a civil offence with the significantly lower threshold of conduct’ based on whether speech offends, insults, humiliates or intimidates.7 The law was sufficiently controversial at the time of its introduction that even Greens senators opposed the law.

But despite widespread support for changing the law, there has always been a diversity of views about how it should be changed.

Some argue that section 18C should be totally repealed because the sections necessary to deal with racial intimidation already exist in state laws.

Others, such as Monash University’s Castan Centre for Human Rights Law, argue ‘prohibitions on speech which offends and insults, even on the basis of race, go too far’.8 The Centre also argue that restricting speech that humiliated was a debatable point, but deferred to keeping it.9 Civil rights group Liberty Victoria argued in favour of simply removing restrictions on offending and insulting speech.10 The reality is that the law was controversial when it was introduced; it has been controversial in its operation and will continue to be controversial into the future.

The moment for reform clearly has passed, but lessons from the debate should not be forgotten.

In announcing the government’s back down the Prime Minister appealed to the uniting idea that we should all be part of ‘Team Australia’.

Yet the single most important reason for reforming the Racial Discrimination Act is a uniting one, not a dividing one.

The single most important reason is to treat everyone equally under the law.

The problem with the Act is that it establishes legal recourse for offensive speech that does not apply to everyone.

No provision exists to restrict speech that offends, insults or humiliates on the basis of gender, disability, age, sexuality or religion.

Yet, if we adopted the same standard for these groups, there would rightly be outrage. Opposition would almost certainly be mounted by many within culturally and religiously conservative communities that support the present wording of section 18C.

For example, if we made it unlawful to air offensive speech on the basis of sexuality it could restrict conservative religious preachers expressing their view that homosexuality is immoral.

The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) does not have anything like section18C.

The Sex Discrimination Act has an uncontroversial provision that restricts workplace harassment on the basis of gender.11 Ironically, the Racial Discrimination Act does not have a provision dedicated to workplace harassment. Instead the Racial Discrimination Act deals with it indirectly through section 18E that stipulates a ‘vicarious liability’ on employers to provide a safe workplace.

It would appear, in haste, the federal government’s exposure draft to amend section 18C removed this provision under section 18E.

Yet workplace harassment could have been the basis for reform. There is no place for harassment in the workplace, racial or otherwise. A ‘Team Australia’ principle would have been to adapt a workplace harassment provision modelled on the Sex Discrimination Act.

From that basis the government also would have a body of uncontroversial case law to help interpret the provision.

It then could have included a different public harassment provision that focused on intimidation.

On that basis a ‘Team Australia’ workplace harassment and public harassment provision could have replaced section 18C and appeased the vast majority of people concerned about racism and freedom of speech.

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1.3 Professor Rosalind Croucheriii President, Australian Law Reform Commission (ALRC) Topic: ALRC Inquiry into Freedoms I have been asked to speak today on the ALRC’s newest inquiry. The Attorney-General, Senator the Hon George Brandis QC, has presented us with a wonderful project. It has two main tasks.

The first is to identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges – such as freedom of speech, freedom of religion, and the right to a fair trial, with prosecutors rather than defendants bearing the burden of proof.12 The Attorney has asked for a Domesday Book – a catalogue or survey of Australian law. (The Domesday Book was the great survey, completed in 1086 at the direction of William I ‘the Conqueror’, of the size and value of each English landholder’s land and livestock – to establish the tax base to support his defence of his new kingdom.) The second task we have is to critically examine those laws to determine whether the encroachment is appropriately justified. We have been asked to focus, but not limit our work, to three areas: commercial and corporate regulation, environmental regulation, and workplace relations.

Challenging? You bet. Interesting? Absolutely! We are calling it ‘the Freedoms Inquiry’.

My interest in freedom as a concept in law An inquiry like this draws upon both my own work in classical liberal thought and also a number of recent ALRC inquiries. It raises difficult questions of how fundamental rights and freedoms should be balanced in liberal democracies. I am a legal historian, with a particular interest in property law. Some years ago I wrote a doctorate on testamentary freedom, which naturally required a philosophical exploration of ideas of freedom in liberal thought.

In the late 17th century, the great English philosopher John Locke thought about freedom and what it meant in the

context of ideas of property. He said that:

Freedom is not, as we are told, a liberty for every man to do what he lists... but a liberty to dispose and order, as he lists, his person, actions, possessions and his whole property, within the allowance of those laws under which he is; and therein not subject to the arbitrary will of another, but freely to follow his own.13 In my doctoral work I grappled with the idea of testamentary freedom as essentially reflecting a balance – between ideas of family and ideas of property – as expressed in laws.14 It was also about prepositions; ‘freedom’ is neither an

Abstract

nor an absolute concept. It is about freedom ‘from’ and freedom ‘for’.

The concept of ‘testamentary freedom’ or ‘liberty of testation’ was propelled by the same philosophical discourse that led to the ascendancy of concepts of freedom of contract and laissez-faire economics and was part of the ‘liberty to dispose… what he lists’ in Locke’s thinking. Each expressed the idea of freedom from state control in favour of the power and choice of the individual. Locke was the English champion of the shift towards individual rights of property away from control of the King and feudal property structures. And it was Locke’s advocacy for the protection of citizens in their ‘lives, liberties and estates’ that has formed the basis of modern discussions of freedom of property and individual rights. ‘The end of Law’, he stated, was ‘not to abolish or restrain, but to preserve and enlarge freedom’.15 And it was his ideas that justified parliamentary supremacy over absolute monarchy in the ‘Glorious Revolution’ of 1688.

I could talk about this at considerable length, but this is not my task today. It does explain why I found the Attorney’s inquiry both of great interest and a great challenge.

iii Professor Rosalind Croucher was appointed to the ALRC in 2007 and President of the ALRC in 2009. Prior to this she was Dean of Law at Macquarie University from 1999-2007, where she still holds a Chair. At the ALRC, Professor Croucher has been the Commissioner in charge of seven inquiries and is currently leading the inquiry into legal barriers for people with disability in Commonwealth laws and the ALRC’s new inquiry into provisions in Commonwealth laws that unreasonably encroach upon traditional rights, freedoms and privileges. Her paper was prepared with considerable assistance from Jared Boorer, Acting Principal Legal Officer at the ALRC.

Free speech in recent ALRC inquiries Freedom of expression is one of the freedoms the ALRC is asked to consider in the Freedoms Inquiry. Although we will be looking at this freedom in a new and broader context in this Inquiry, this is by no means the first time the ALRC has had to consider freedom of speech. Reviewing some of the ALRC’s recent law reform projects, I was surprised how frequently the ALRC has had to consider the importance of the right.

Perhaps unsurprisingly, we have often needed to ‘balance’ freedom of expression with other rights and interests.

Rights will of course sometimes conflict with each other. Few, if any, rights are absolute. It’s part of that approach signalled by Locke, namely that liberty sits within ‘the allowance of laws’ – or as the Privy Council said in 1936, ‘free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law’.16 It therefore seems inevitable that freedom of expression will sometimes need to be ‘balanced’ with other interests.

I thought I would take this opportunity to highlight a handful of inquiries in which only recently the ALRC has had to think about how free speech might be weighed against other interests.

Privacy Freedom of expression arose most recently in the ALRC’s inquiry into how Australia’s laws can be reformed to better prevent and redress serious invasions of privacy. The final report was completed in June, and is now with the Government, so I won’t speak about our conclusions until it is made public through tabling in Parliament. But it will hardly surprise anyone that we heard many concerns that the introduction of a new cause of action for serious invasion of privacy would damage free speech. Media freedom in particular, we were told, would be undermined, if the media feared being sued for invading people’s privacy. In designing the cause of action, as we were required to do under our Terms of Reference, the ALRC was constantly mindful of the need to ensure that free speech would not be unduly undermined.

In the United Kingdom, courts now explicitly balance privacy and free expression when determining whether a person has a cause of action for misuse of private information. The need for some sort of balancing exercise partly follows from the fact that both privacy and free expression are recognised as fundamental rights under the UK’s 1988 (UK) (Human Rights Act).

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